Himachal Pradesh High Court
Subhash Chand vs Mohan Singh Thakur on 30 July, 2025
( 2025:HHC:25363 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal Nos 341 of 2018.
.
Reserved on: 15.07.2025.
Date of Decision: 30.07.2025.
Subhash Chand ...Petitioner.
Versus
Mohan Singh Thakur ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Sudhir Thakur, Senior Advocate, with Mr. Karun Negi, Advocate.
For the Respondent : M/s. Amrik Singh & Hitesh Kumar, Advocates.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 20.04.2018, passed by learned Sessions Judge, Kinnaur, Session Division at Rampur Bushahr Camp at Reckong Peo, H.P. (learned Appellate Court), vide which the judgment of conviction and order of sentence dated 24.06.2017 passed by learned Chief Judicial Magistrate Kinnaur, at Reckongpeo (learned Trial Court) were set aside and the accused was 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 30/07/2025 21:25:20 :::CIS 2( 2025:HHC:25363 ) acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).
.
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the complainant is an Agriculturalist and a Registered Government Contractor. Accused promised the complainant to get the contract work of construction in Tarni Hydro Pvt. Ltd in the year 2014. Accused demanded a sum of ₹15,00,000/- from the complainant for this purpose. The complainant paid the amount to the accused in instalments. The accused failed to obtain the work. He issued two cheques i.e., one amounting to ₹10,00,000/- and another amounting to ₹5,00,000/- to return the amount. The complainant presented the cheque of ₹10,00,000/- to his bank; however, the cheque was returned with the remark "insufficient funds". The complainant served a notice upon the accused asking him to repay the amount within 15 days from the date of receipt of the ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 3 ( 2025:HHC:25363 ) notice. The notice was duly served upon the accused, but the accused failed to repay the money. Hence, the complaint was .
filed before the learned Trial Court to take action as per law.
3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared before the learned Trial Court, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act, to which he pleaded not guilty and claimed to be tried.
4. The complainant examined himself (CW1) to prove his case.
5. The accused, in his statement recorded under Section 313 of Cr.P.C., stated that the cheque was issued as security. He admitted that the notice was served upon him and claimed that he had sent a reply to the notice. He stated that he was innocent and was falsely implicated. He was not liable to repay any amount to the complainant. He did not choose to lead any defence evidence.
6. Learned Trial Court held that the issuance of the cheque was not disputed. The accused claimed that the cheque was issued as a security, but mere issuance of a cheque as ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 4 ( 2025:HHC:25363 ) security will not absolve the accused of the commission of crime. The accused did not prove that the contract was awarded .
to the complainant as promised by him. Accused was a Technical Advisor and had nothing to do with the process of the award of the tender. He misled the complainant by using his official position and assured the complainant that the work would be awarded to him. He obtained ₹15,00,000/- from the complainant for this purpose. Since the work was not awarded to the complainant, therefore, the accused was liable to return the amount of ₹15,00,000/-. The cheque was dishonoured with endorsement "insufficient funds". The receipt of the notice was not disputed. Hence, all the ingredients of the commission of an offence punishable under Section 138 of the NI Act were satisfied. Consequently, the accused was convicted of the commission of an offence punishable under Section 138 of NI Act and was sentenced to undergo simple imprisonment for six months and pay a compensation of ₹13,00,000/- to the complainant.
7. Being aggrieved from the judgment and order passed by learned Trial Court, the accused filed an appeal, which was decided by learned Sessions Judge, Kinnaur Sessions Division at ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 5 ( 2025:HHC:25363 ) Rampur Bushahr, Camp at Reckonpeo (learned Appellate Court).
Learned Appellate Court concurred with the findings recorded .
by learned Trial Court that since the issuance of the cheque was not disputed, therefore, a presumption would arise that the cheque was issued in discharge of the legal liability. The complainant asserted that the cheque was issued in part payment of the money received by the accused. He admitted that the cheque was issued as a security. The words as security were also mentioned on the reverse side of the cheque. The complainant admitted that the contract was cancelled and there was no evidence that the work was awarded to some other person; therefore, the condition for presenting the cheque that the work was not allotted to the complainant was not satisfied.
The requirements of Section 138 of the NI Act were not satisfied, and the matter was civil. Consequently, the appeal was allowed and the judgment and order passed by the learned Trial Court were set aside.
8. Being aggrieved by the judgment passed by the learned Appellate Court, the complainant has filed the present appeal asserting that the learned Appellate Court erred in appreciating the material placed before it. The accused admitted ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 6 ( 2025:HHC:25363 ) the issuance of the cheque, and the burden is upon him to rebut the presumption attached to the cheque. There is no evidence .
that the work was allotted to the complainant; hence, the accused was liable to return the money taken by him from the complainant. The cheque was not issued as a security but for the repayment of the amount. Learned Appellate Court dismissed the complaint on a hyper-technical ground. The judgment passed by the learned Appellate Court is not sustainable;
therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside.
9. An application for additional evidence was also filed to place the judgment and decree passed by learned Senior Civil Judge, Kinnaur at Reckong Peo on record.
10. I have heard Mr. Sudhir Thakur, learned Senior Counsel, assisted by Mr. Karun Negi, learned counsel for the appellant/complainant and M/s. Amrik Singh & Hitesh Kumar, learned counsel, for the respondent/accused.
11. Mr. Sudhir Thakur, learned Senior Counsel for the appellant/complainant, submitted that the learned Appellate Court erred in dismissing the complaint. The accused had ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 7 ( 2025:HHC:25363 ) admitted the issuance of the cheque, and a presumption arose in favour of the complainant that the accused had issued the .
cheque in discharge of his legal liability. There is no evidence that the accused had fulfilled the promise made by him to the complainant regarding the allotment of work. The accused had taken ₹15,00,000/- for getting the work allotted to the complainant. When the work was not allotted to the complainant, the accused was liable to return the money; hence, even if the cheque was issued as a security, the condition for presenting the cheque was duly satisfied. All the ingredients of Section 138 of NI Act were duly satisfied; hence, he prayed that the present appeal be allowed and the judgment passed by learned Appellate Court be set aside. He relied upon the judgment of Hon'ble Supreme Court in Sripati Singh (since deceased) through His Son Gaurav Singh Vs. State of Jharkhand & Anr., Criminal Appeal Nos 1269-1270 of 2021, decided on 28 th October, 2021, in support of his submission.
12. Mr. Amrik Singh, learned counsel for the respondent/accused, submitted that the learned Appellate Court had taken a reasonable view while acquitting the accused, and this Court should not interfere with the reasonable view of the ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 8 ( 2025:HHC:25363 ) learned Appellate Court. As per the complainant, the money was paid as a bribe, and issuance of the cheque for the return of the .
bribe does not constitute a legally enforceable debt. No liability arises in such a case; hence, he prayed that the appeal be dismissed. He relied upon the judgment in M.S. Narayan Menon @ Mani Vs. State of Kerala & Anr. 2006 (6) SCC 39, in support of his submission.
13. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
14. A heavy reliance was placed upon the judgment passed by learned Senior Civil Judge to submit that the suit filed by the complainant/appellant has been decreed and the appeal should be allowed. This submission is not acceptable.
15. Sections 40 to 44 of the Indian Evidence Act deal with the admissibility of the judgments of the Court. Section 40 provides that a judgment, order or decree which prevents any Court from taking cognisance or holding a trial is relevant. It is not the case of the applicant that the judgment passed by the learned Senior Civil Judge prevents the Court from taking cognisance or holding a trial. Thus, it does not fall within the ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 9 ( 2025:HHC:25363 ) purview of Section 40 of the Indian Evidence Act. Section 41 of the Indian Evidence Act deals with the judgments delivered by .
probate, matrimonial, admiralty or insolvency jurisdiction.
Learned Senior Civil Judge was not exercising any of these jurisdictions while delivering the judgment. Hence, the judgment is not admissible under Section 41 of the Indian Evidence Act. Section 42 of the Indian Evidence Act deals with judgments, orders or decrees if they relate to a matter of public nature relevant to the inquiry. The judgment of learned Senior Civil Judge does not deal with a matter of public nature, and the judgment is not admissible under Section 42 of the Indian Evidence Act. Section 43 provides that judgments, orders or decrees other than those mentioned in Sections 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree is a fact in issue or relevant fact in some other provision of the Act. It was held in State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118, that a judgment which does not fall within Sections 40 to 42 of the Indian Evidence Act is inadmissible in evidence. It was observed:
42. Taking the first head, it is well settled that judgments of courts are admissible in evidence under the provisions of Sections 40, 41 and 42 of the Evidence Act. Section 43, ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 10 ( 2025:HHC:25363 ) which is extracted below, clearly provides that those judgments which do not fall within the four corners of Sections 40 to 42 are inadmissible unless the existence of .
such judgment, order or decree is itself a fact in issue or a relevant fact under some other provisions of the Evidence Act:
43. Judgments, etc., other than those mentioned in Sections 40 to 42, when relevant-Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act.
Some courts have used Section 13 to prove the admissibility of a judgment as coming under the provisions of Section 43, referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions in order to make a particular document admissible. In other words, if a judgment is not admissible as not falling within the ambit of Sections 40 to 42, it must fulfil the conditions of Section 43;
otherwise, it cannot be relevant under Section 13 of the Evidence Act. The words "other provisions of this Act"
cannot cover Section 13 because this section does not deal with judgments at all.
It is also well settled that a judgment in rem, like judgments passed in probate, insolvency, matrimonial or guardianship or other similar proceedings, is admissible in all cases whether such judgments are inter partes or not. In the instant case, however, all the documents consisting of judgments filed are not judgments in rem and therefore, the question of their admissibility on that basis does not arise. As mentioned earlier, the judgments filed as Exhibits in the instant case are judgments in personam and, therefore, they do not fulfil the conditions mentioned in Section 41 of the Evidence Act."::: Downloaded on - 30/07/2025 21:25:20 :::CIS 11
( 2025:HHC:25363 )
16. Thus, the judgment is irrelevant as per Section 43 of the Indian Evidence Act and cannot be taken on record. Hence, .
the present application fails, and the same is dismissed.
17. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon'ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176:
(2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading of evidence, omission to consider the material evidence and no reasonable person would have recorded the acquittal based on the evidence led before the learned Trial Court. It was observed:
"11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus:
"38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 12 ( 2025:HHC:25363 ) "29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while .
dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) '42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate, and reconsider the r evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law.
(3) Various expressions, such as "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is a ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 13 ( 2025:HHC:25363 ) double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the .
fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed, and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) "8. ... 8.1. The acquittal of the accused further strengthens the presumption of innocence.
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence.
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 14 ( 2025:HHC:25363 ) 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis .
of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity.
41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
18. A similar view was taken in Bhupatbhai Bachubhai Chavda v. State of Gujarat, 2024 SCC OnLine SC 523, wherein it was observed: -
"6. It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re-appreciating the evidence, the first question that needs to be answered by the Appellate Court ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 15 ( 2025:HHC:25363 ) is whether the view taken by the Trial Court was a plausible view that could have been taken based on the evidence on record. Perusal of the impugned judgment of .
the High Court shows that this question has not been adverted to. The Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn the order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused.
After having perused the judgment, we find that the High Court has not addressed itself to the main question."
19. The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
20. It was specifically mentioned in the complaint that the accused promised the complainant to get the work of construction allotted to him from Tarni Hydro Pvt. Ltd. and demanded ₹15,00,000/- from the complainant, which was paid by him. The accused issued the cheque to repay the amount so taken by him after making the assurance of getting the work allotted to the complainant. He admitted that the accused is the Technical Advisor of Tarni Hydro Pvt. Ltd. He also admitted that ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 16 ( 2025:HHC:25363 ) the cheque was issued as a security, and the word as security was mentioned on the reverse of the cheque.
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21. The complainant has not explained how the accused could have legitimately got the work allotted to him(complainant). Learned Trial Court had rightly pointed out that the work was to be allotted by the tender to the lowest tenderer. The accused was merely a Technical Advisor, which shows that the money was paid to him to influence him to get the work allotted in the complainant's favour. Thus, the money was paid as consideration for getting the work allotted to the complainant otherwise than on merit, and it was rightly submitted on behalf of the accused that the amount was towards the bribe for getting the work allotted.
22. In Virender Singh v. Laxmi Narain, 2006 SCC OnLine Del 1328, a cheque was issued for arranging a job in Haryana Police. It was held by Delhi High Court that the cheque was not issued for a legally enforceable debt. It was observed:
"Now, the explanation in Section 138 of the said Act makes it clear that the expression "debt or other liability"
has reference only to a legally enforceable debt or liabil- ity. Conversely, if a cheque is issued in respect of a debt or liability which is not legally enforceable then. Section 138 of the said Act would not apply. Section 23 of the Indian ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 17 ( 2025:HHC:25363 ) Contract Act, 1872, inter alia, stipulates that every agree- ment of which the object or consideration is unlawful is void. The said Section 23 reads as under:--
.
"23. The consideration or object of an agreement is lawful, unless it is forbidden by law: or is of such a nature that, if permitted, it would defeat the provisions of any law: or is fraudulent: or involves or implies injury to the person or property of another: or the court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
An agreement which is void is not enforceable by law [see: Sections 2(g) and 10 of the Indian Contract Act, 1872]. The question, therefore, is - Was the agreement between the petitioner and the complainant for securing a job for the complainant's nephew in the Haryana Police, legally enforceable? Fortunately, the answer is provided straightaway by illustration (F) to Section 23 of the Indian Contract Act. 1872. The said illustration (f) reads as under:
"(1) A promises to obtain for B an employment in the public service, and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful."
Clearly, the facts of the present case fit into this illustra- tion. Therefore, it can be safely stated that the agreement between the petitioner and the complainant was void as the consideration of Rs. 80.000/- was in the nature of an illegal gratification and was unlawful. The next question, taking illustration (f) further, is - B having paid A the promised sum of 1.000 rupees but, A not fulfilling his promise of obtaining for B an employment in public ser- vice, does B have a remedy in law to seek restitution and return of the 1000 rupees that he has paid to A? What is the obligation of a person who has received an advantage ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 18 ( 2025:HHC:25363 ) under a void agreement? Is A bound to return the sum of 1,000/- rupees to B?
xxxx .
In Kuju Collieries Ltd. v. Jharkhand Mines Ltd. (1974) 2 SCC 533, a sum of Rs. 80,000/- (coincidentally) had been paid by one party as salami for a mining lease. The stipulation for payment of salami was illegal, and the lease on the ba-
sis of that was also illegal. The question of the return of the said sum of Rs. 80.000/- arose in the context of the provisions of the said Section 65. The Supreme Court held that since the parties were aware of the illegality of the agreement at the time it was entered into, it was not a case of an agreement which was "discovered to be void"
subsequent to its execution. Consequently, Section 65 was found not to be applicable and the return of the sum of Rs.
80,000/- could not be enforced. "The Supreme Court ob-
served as under: --
"12. The further question is whether it could be said that this contract was either discovered to be void or became void. The facts enumerated above would show that the contract was void at its inception, and this is not a case where it became void subsequently. Nor could it be said that the agreement was discovered to be void after it was entered into. As pointed out by the trial Court, the plaintiff was already in the business of mining and had the advantage of consulting its lawyers and solicitors. So there was no occasion for the plaintiff to have been under any kind of ignorance of law under the Act and the Rules. Clearly, therefore, this is not a case to which Section 65 of the Contract Act applies. Nor is it a case to which Section 70 or Sec- tion 72 of the Contract Act applies. The payment of the money was not made lawfully, nor was it done under a mistake or under coercion.
13. We agree with the trial Court that the plaintiff should have been aware of the illegality of the agree- ment even when it entered into it, and therefore Sec- tion 65 of the Contract Act cannot help it."::: Downloaded on - 30/07/2025 21:25:20 :::CIS 19
( 2025:HHC:25363 ) Clearly, a review of the legal position with regard to the scope and ambit of the said Section 65 indicates that it would not apply to cases falling under Section 23. In other .
words, agreements which are void ab initio and whose il-
legality is known to the parties at the time of execution would not fall within the purview of Section 65. An agree- ment of the kind mentioned in illustration (f) to Section 23 and the one at hand being void ab initio and to the knowledge of the parties would also not benefit from the equitable principle of restitution embedded in Section 65. So, neither the sum of 1.000 rupees mentioned in the said illustration (f) nor the sum of Rs. 80.000/- paid in the present case is recoverable in law.
10. In view of the clear position based on statutory provi- sions, it is not open to set up the position in English law as crystallised in the maxim in pari delicto portior est con-
ditio possidentis (defendants) and then to urge that the present case falls in the category of exceptions to that rule and therefore the money it legally paid can be recov- ered under law. But, as the learned counsel for the re-
spondent laid stress on this submission and placed re- liance on two decisions of the Supreme Court in Situ Ram v. Radha Bai (supra), and Mohd. Salimuddin v. Misri Lal (supra), a discussion on these aspects is necessary.
11. The doctrine or rule of pari delicto is the embodiment of the principle that the courts will refuse to enforce an illegal agreement at the instance of a person who is him-
self a party to an illegality or fraud. As per Black's Law Dic- tionary (fifth edition), the maxim - pari delicto portior est conditio possidentis (defendant is)- means: --
"In a case of equal or mutual fault [between two par- ties], the condition of the party in possession [or de- fending] is the better one. Where each party is equally in fault, the law favours him who is actually in posses- sion. Where the fault is mutual, the law will leave the case as it finds it."
In Herbert Broom's "A Selection of Legal Maxims" (10th edition), the maxim is explained as follows:
::: Downloaded on - 30/07/2025 21:25:20 :::CIS 20( 2025:HHC:25363 ) "The maxim, in pari delicto porlior est conditio possi- dentis, is as thoroughly settled as any proposition of law can be. It is a maxim of law established, hot for the .
benefit of plaintiffs or defendants, but is founded on the principles of public policy, which will not assist a plaintiff who has paid over money, or handed over property, in pursuance of an illegal or immoral con-
tract, to recover it back; 'for the Courts will not assist an illegal transaction in any respect'. The maxim is therefore, intimately connected with the more com- prehensive rule of our law, ex turpi causa no oritur actio, on account of which no court will "allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is ille- gal"; and the maxim may be said to be a branch of that comprehensive rule: for the well-established test, for determining whether the money or property which has been parted with in connection with an illegal transac- tion can be recovered in a Court of justice, is to ascer- tain whether the plaintiff, in support of his case, or as part of his cause of action, necessarily relies upon the illegal transaction: if he "requires aid from the illegal transaction to establish his case, - the Court will not entertain his claim."
12. So, if the maxim in pari delicto etc., were to apply, the complainant/respondent No. 1 could not have a claim for recovering the Rs. 80.000/- paid by way of illegal gratifi-
cation for securing a job for his nephew in the Haryana Police. It is here that the learned counsel for the respon- dent No. 1 pressed into service the observations of the Supreme Court in paragraph 11 of the decision of Sita Ram v. Radha Bai (supra), to submit that there are three exceptional circumstances to which the maxim does not apply and that the present case falls in one of those. The three classes of cases being:--
(a) Where the illegal purpose has not yet been sub-
stantially carried into effect before it is sought to recover money paid or goods delivered in further- ance of it;
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(b) Where the plaintiff is not in pari delicto with the defendant;
(c) Where the plaintiff does not have to rely on the .
illegality to make out his claim.
If the facts of the present case are examined, it would be immediately clear that it does not fall in any of these three classes of cases. The first class of cases deals with situations or agreements where the object is unlawful. In the present case - securing a job in the Haryana Police for the nephew - is not an unlawful object. What is unlawful is the consideration paid for it. The consideration having already been paid, the illegality stood completed on the part of the respondent No. 1. And since the respondent No. 1 would have to rely upon this illegality to make out his claim or enforce the same, this case also does not fall within the third class of cases mentioned above. This leaves us with the second class of cases where the parties are not in pari delicto. In Sita Ram v. Radha Bai (supra), the Supreme Court was dealing with a case where the parties were not "in pari delicto" or, to put it differently, "in equal fault". And in that backdrop, the Supreme Court observed that it is settled law that where the parties are not in pari delicto, the less guilty party may be able to re-
cover money paid or property transferred, under the con- tract. It was further held that such a possibility could arise in three situations: --
(1) The contract may be of a kind which has been made illegal by statute in the interest of a particular class of persons of whom the plaintiff is one:
(2) The plaintiff must have been induced to enter into the contract by fraud by strong pressure:
(3) The defendant is under a fiduciary duty to the plaintiff and it is in connection with this fiduciary relationship that moneys have come into his hands as proceeds of a transaction albeit illegal.
None of these three situations arise in the present case. In any event, the parties in the present were pari delicto so, no investigation into whether the any of these three situ-
::: Downloaded on - 30/07/2025 21:25:20 :::CIS 22( 2025:HHC:25363 ) ations arose is called for. The Supreme Court decision in Sita Ram v. Radha Bai (supra) is on a different footing. There, the parties were not in pari delicto and the case fell .
under the third situation of the fiduciary relationship re-
ferred to above.
In the present case, neither party is a victim of exploita- tion. Both had voluntarily and by their free will joined hands to flout the law. Therefore, in terms of the Supreme Court decisions in Sita Ram v. Radha Bai (supra) and Mohd. Salimuddin (supra) themselves, the parties be- ing in pari delicto, the doctrine would apply and the sum of Rs. 80.000/- could not be recovered in a court of law. Meaning thereby that there did not exist any legally en- forceable debt or liability for the discharge of which it could be said that the cheque in question was issued. Con-
sequently, Section 138 of the said Act would not be at-
tracted. This legal-position was not appreciated by the courts below and it is for this reason that they fell into er- ror. That being the case, the conviction of the petitioner is set aside. It is, however, made clear by the learned coun- sel for the petitioner that the sum of Rs. 1 lac. which had been deposited pursuant to the orders by the court below, has already been withdrawn by the respondent No. 1 and that he would not be pressing for its return. The learned counsel for the petitioner also submits that to maintain his bona fides, he would be paying a further sum of Rs. 20.000/- within two months to the complainant/respon-
dent No. 1. He submits that the said sum will be deposited in the trial court, which the complainant/respondent No. 1 may withdraw immediately thereafter.
23. It was held in Khaja Obedullah Vs. State of Andhra Pradesh & Anr. 2018(3) ALT (Crl.) 192, that no Court will aid a person who found his cause of action upon an immoral or illegal act. It was observed:-
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8. In G.Pnakajakshi Amma and Ashok Kumar Aggarwal cases (1 and 2 supra) cited by the petitioner, the Apex Court reiterated the principle ex dolo malo non oritur .
action, i.e. "no Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act". Hence, the question is whether the complainant and her husband paid the amount to the father of the accused for an illegal purpose, i.e. to bribe the imposters treating them as IT officers or whether they paid the amount for a genuine purpose to settle their income tax dues and to avoid imminent house search. If their motive is to bribe the duped officials, certainly the Court will not lend its helping hand to the complainant for recovery of such amounts since the object of such payment is an illegal one as laid in the aforesaid principle. In this regard, a perusal of the FIR No.423 of 2015 lodged by Shavakath Hyder Qureshi, the husband of the complainant, would show that they paid the amounts from time to time to the father of the accused for clearance of income tax dues, but not as bribes to the officials. He never stated that he paid the amounts as a bribe. On the other hand, his allegation in the FIR is that on 05.09.2014, when he and Khaja Kalimulla-father of the accused, while taking lunch, three persons proclaiming themselves as IT officers entered their house and told them that there were income tax dues and they wanted to search the house and asked to give the keys. On that, Kalimulla took them aside and talked with them and came to Hyder Qureshi and informed him that as per office records, he fell due of Rs. 12 lakhs towards income tax. On that, Qureshi informed that he did not have more than Rs. 5 lakhs. Again, Kalimulla took those persons aside and pretended to have talked with them and came to Qureshi and told him to pay Rs. 5 lakhs and pay the remaining amount in two days. Accordingly, the complainant and her husband, Qureshi, paid Rs. 5 lakhs on that day and the remaining amount of Rs. 7 lakhs after 2 days to Kalimulla to discharge the tax claim. Thereafter, again on 22.07.2015, the imposters telephoned him and told him that still income tax was ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 24 ( 2025:HHC:25363 ) pending. Then, he informed the said fact to Kalimulla, who, in turn, pretended to have talked with IT officers and told Qureshi to pay Rs. 6 lakhs towards the balance of .
income tax due and Rs. 24,000/-towards fine to close the case. Believing his words, they paid the amount, and the total amount paid was more than Rs. 18 lakhs. They ultimately realised that Kalimulla and three others cheated them in the guise of IT officers."
24. In Dipesh Thakorbhai Tandel Vs. Hiren Kishorbhai Bhatt 2020 (3) DCR 345, a cheque was issued to return the amount taken for securing the Government Job. It was held that it does not fall within the definition of legally enforceable debt.
It was observed:-
"7. Even if it is presumed that the cheque is issued by the accused, it was not of the transaction falling within the definition of legally enforceable debt, which the complainant has miserably failed to prove so and, therefore, the trial Court has, after assigning good reasons, acquitted the respondent-accused.
8. I am in full agreement with the reasons assigned by the learned Judge and, therefore, no case is made out to grant Special Leave to Appeal under sub-section (4) of Section 378 of the Code."
25. This position was reiterated in B. Babu Rao Vs. Kishore Naidu Durga Manik 2022 STPL 13464 Telangana, wherein it was observed:-
5. Learned counsel for the respondent/accused submits that accepting that the amount of Rs.3,00,000/- was taken by the respondent/ accused, for the purpose of securing a job, the same is illegal ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 25 ( 2025:HHC:25363 ) and in the absence of there being anything which suggests that the amount was taken as loan, the requirement of a 'enforceable debt' is lacking, for .
which reason, the appeal fails. Further, to draw a presumption under Section 139 of the Negotiable Instruments Act, there is an initial burden on the complainant to prove that the same is a legally enforceable debt. He relied on the judgment of Karnataka High Court in the case of R.Parimala Bai v. Bhaskar Narasimhaiah, 2018(4) R.C.R (Criminal) 26:
(2018 ACD 982 (KAR) wherein it is held as follows:
"19. Now, coming to the factual aspects of this case. It is clear from the complaint averments that it is the case of the complainant that the complainant has a son by name B. Sharath, the accused and complainant were known to each other since long. The complainant met the accused and in fact the accused had assured to provide a job to his son in HAL factory. In this context, the accused had requested the complainant to pay an amount of Rs.10 lakhs and he demanded the same for the purpose of providing a job to the son of the complainant. In this context, it is stated that, on various occasions, the complainant has paid some amounts to him. As the accused could not get the job to the son of the complainant, the complainant approached the accused. Then the accused again demanded for further amount for making payment to the Officers. As per the demand, the complainant paid amount to him. In total, lot of amount has been paid to the accused for the purpose of securing job to the son of the complainant. As the accused was not able to secure the job in HAL to the complainant's son, the complainant demanded for repayment of the money. In that context, it is said that on 1.5.2009, the accused issued a cheque bearing No.262871 for ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 26 ( 2025:HHC:25363 ) a sum of Rs. 10 lakhs and on presentation of the said cheque it came to be dishonoured on the ground of 'funds insufficient'. After complying .
the other provisions of Section 138 of the Negotiable Instruments, it appears the complaint came to be lodged.
20. It is seen that, there are absolutely no allegations whatsoever that the accused has taken this money as a loan or a debt or as a liability at any point of time. It is clear cut case of the complainant that, he has paid money for the purpose of securing job for his son, even without examining whether the accused has got any authority to provide job to his son or not and what is the procedure that is required to be followed by the HAL factory for the purpose of selecting any candidate for the purpose of providing any job. Therefore, without examining anything, the complainant himself has entered into a void contract with the accused and paid money as against the public policy for illegal purpose."
Under similar circumstances, in the above cited judgment the accused took an amount of Rs. 10.00 lakhs for providing a job and when he failed to do so, issued a cheque to return the said amount. The same was dishonoured for the reason of 'funds insufficient'. In the said circumstances, the Court held that the said amount was given towards illegal purpose and in the circumstances, it cannot be said that it is a legally recoverable debt to attract an offence under Section 138 of the Negotiable Instruments Act.
6. The other judgment, which the learned counsel for the respondent/accused relied upon is in the case of K.N.Beena v. Muniappan and another (Appeal (Crl.) 1066 of 2001,(2001 CRI L J 4745)(SC) wherein the Hon'ble Supreme Court held that burden of proving that a chqeue has not been issued for debt or liability ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 27 ( 2025:HHC:25363 ) is on the accused, after the initial burden is discharged.
7. The learned counsel for the appellant alternatively .
submits that the case has to be remanded to the trial Court for the purpose of providing an opportunity to the complainant/ appellant to prove his case.
8. The three Judge Bench judgment of Hon'ble Supreme Court in the case of Kuju Colieries Ltd., v. Jharkhand Mines Limited (1974) 2 Supreme Court Cases 533 :(AIR 1974 SC 1892), the Hon'ble Supreme Court held that an agreement entered into between the parties for an illegal purpose, the same cannot be recovered.
9. The High Court of Kerala in the case of J.Daniel v. State of Kerala (2005 SCC OnLine Ker 366) :(2005 CRI L J 4095) (Ker) held as follows:
"8. A reading of the above would show that any agreement opposed to law or forbidden by law is not enforceable. Every debt or liability upon which a cheque is issued is not enforceable. For example, if an officer of defence force receives a cheque for consideration on the basis of an agreement to pass on military secrets, such a cheque is not enforceable under Section 138 of the Act. It can be interpreted that any debt or liability arising out of a contract or promise, which is unlawful or not legally enforceable, would not constitute an offence under Section 138 of the Act."
10. The appellant/complainant himself admits that the cheque was issued for the purpose of securing job in Midhani company which is not by any legal means. In the said circumstances, when the cheque was drawn not for the purpose of securing any debt or liability, but pursuant to an illegal contract of an agreement entered into between the complainant and the accused, it cannot be said that it is a legally enforceable debt and such contracts/agreements are prohibited under law. For the said reason, as the ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 28 ( 2025:HHC:25363 ) cheque drawn was not in support of any debt or liability, the same cannot be legally enforceable.
11. The argument of the learned counsel for the .
appellant that the case be remanded for denovo trial cannot be entertained for the reason of the appellant not making out any grounds to remand the matter for fresh trial. There is no illegality either procedural or otherwise committed by the learned Magistrate to remand the matter back for fresh trial as urged by the appellant/complainant.
26. It was held by this Court in Naresh Kumar Vs. Joginder Singh 2023 STPL 13328 HP, that where the money was advanced for securing a job in the Indian Railway, and the cheque was issued to return this amount, the cheque was not issued in discharge of the legal liability. It was observed:-
"19. Legislature, in its wisdom, has elaborated the term 'debt or other liability', in the explanation to Section 138 of the NI Act, reproduced above, as 'a legally enforceable debt or other liability'.
20. As per the stand taken, in the complaint, there was alleged agreement between the complainant and accused to get the son of the complainant recruited in the Railway, for which, the complainant had agreed and paid Rs. 4,50,000/.
21. In this factual background, the first and foremost question, which arises for determination before this Court, is with regard to the fact that whether the issuance of the cheque, amounting to Rs.4,50,000/, which was allegedly received by the petitioner, for getting the son of the complainant, recruited in the Railway, falls in the definition of the legally enforceable debt or other liability. In this regard, the provisions of Sections 23 and 24 of the Contract Act, assume significance and those provisions are reproduced as under:::: Downloaded on - 30/07/2025 21:25:20 :::CIS 29
( 2025:HHC:25363 )
23. What considerations and objects are lawful, and what not.--
The consideration or object of an agreement is lawful, .
unless-- "it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
24. Agreements void, if considerations and objects unlawful in part.--If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void.
22. If the facts and circumstances of the present case are seen in the light of the bare provisions of Sections 23 and 24 of the Indian Contract Act, then the alleged agreement, with regard to getting the son of the complainant recruited in the Indian Railway, falls within the definition of void agreement.
23. As per Section 138 of the NI Act, it is sine qua non that there should be an existence of legally recoverable debt, whereas, in this case, the amount allegedly has been paid by the complainant to the accused for securing the job for his son in the Indian Railway.
24. As per para 2 of the complaint, the accused, who is an Ex. Serviceman has allegedly allured the complainant and many other persons to get their wards recruited in the Indian Railway.
25. Bare reading of the complaint makes the object of the complainant, to allegedly advance the amount to accused, unlawful.
26. Hon'ble Apex Court in G. Pankajakshi Amma & Others versus Mathai Mathew (dead) through LRs & Another, (2004) 12 Supreme Court Cases 83, has held that the Court cannot ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 30 ( 2025:HHC:25363 ) come to the aid of the party in an illegal transaction. Relevant para 10 of the judgment is reproduced, as under:
"10. There is any reason also why the impugned judgment .
cannot be upheld. According to the 1st respondent, these transactions were to be unaccounted transactions. According to the 1st respondent, all these amounts are paid in cash. If these are unaccounted transactions then they are illegal transactions. No court can come to the aid of the party in an illegal transaction. It is settled law that in such cases the loss must be allowed to lie where it falls. In this case, as these are unaccounted transactions, the Court could not have lent its hands and passed a decree. For these reasons also the suit was required to be dismissed." (self emphasis supplied)
27. Certainly, the amount allegedly paid by the complainant was for illegal purpose i.e., for getting the son of the complainant recruited, in the Indian Railway, by paying money. Meaning thereby, their contract was illegal, being contrary to the law, as well as, against the public Policy.
28. As such, the complainant cannot maintain an action to enforce the violation of the provisions of Section 138 of the NI Act, on the basis of illegal transaction.
29. Payment of money for an illegal purpose is against public policy, and Hon'ble Apex Court in B. Sunitha versus State of Telangana & Another, AIR 2017 (Supreme Court) 5727, has held that if the object is illegal, then the complaint, under Section 138 of the NI Act, is not maintainable. Relevant paragraphs 18 and 19 of the judgment are reproduced as under:
"18. Thus, mere issuance of a cheque by the client may not debar him from contesting the liability. If liability is disputed, the advocate has to independently prove the contract. Claim based on percentage of subject matter of litigation cannot be the basis of a complaint under Section 138 of the Act.
19. In view of the above, the claim of the respondent advocate being against public policy and being an act of professional misconduct, proceedings in the complaint ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 31 ( 2025:HHC:25363 ) filed by him have to be held to be abuse of the process of law and have to be quashed." (self emphasis supplied)
30. At the cost of repetition, the complainant could not .
initiate the complaint against the complainant, as the amount was allegedly paid for an illegal purpose. The present admitted proposition of fact is squarely covered by illustration (f) attached to Section 23 of the Contract Act, which reads as under:
" A promises to obtain for B an employment in the public service, and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful."
27. Punjab & Haryana High Court also held in Surinder Singh Vs. Ram Dev 2024 SCC OnLine P&H 12999, that where the amount was paid as a bribe for securing Government employment in the Punjab Police, and the cheque was issued to return the amount; the cheque was not issued in discharge of the legally enforceable debt or liability. It was observed:-
"6. Upon careful examination of the evidence and the submissions made by the parties, it is pertinent to note that the appellant himself unequivocally admitted during his cross-examination before the trial Court that the cheque amount was paid as a bribe to the respondent for securing Government employment in the Punjab Police by certain job aspirants. Given this admission, it is imperative to clarify that the cheque amount cannot, under any circumstances, be deemed to have been issued in discharge of a legally enforceable debt or liability.
7. Under Section 138 of the NI Act, the mere issuance of a cheque does not constitute an offence unless it is proven that the cheque was issued for the discharge of a debt or liability that is legally enforceable. It is well-settled law ::: Downloaded on - 30/07/2025 21:25:20 :::CIS 32 ( 2025:HHC:25363 ) that any debt or liability arising from a contract or promise that is unlawful, immoral, or not legally enforceable does not attract the provisions of Section 138 .
of the Act. A payment made as a bribe, being an illegal and immoral transaction, does not constitute a legally enforceable liability. Thus, the learned trial Court correctly concluded that no legally enforceable debt existed in this case, and the cheque issued in furtherance of an unlawful act cannot give rise to criminal liability under the Negotiable Instruments Act."
28. Therefore, it is apparent that money advanced to the accused for getting the contract cannot be recovered. Any cheque issued to return the amount will not be in the discharge of a legal liability.
29. In the present case, the amount was paid for securing the work in a Company where the accused was employed; thus, it was in the nature of a bribe to get the contract in the complainant's favour, and a cheque was issued to return the amount. The cheque was not issued in discharge of the legal liability, and no complaint could have been filed based upon such a cheque; therefore, the learned Appellate Court had rightly held that the accused cannot be convicted based on the allegations made by the complainant. This was a reasonable view taken by the learned Appellate Court, and no interference is required with it while deciding an appeal against the acquittal.
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30. In view of the above, the present appeal fails, and the same is dismissed.
.
31. A copy of the judgment and the record of the learned Courts below be sent back forthwith.
(Rakesh Kainthla) Judge 30th July, 2025 (Shamsh Tabrez) ::: Downloaded on - 30/07/2025 21:25:20 :::CIS